JANA JAGRUTHI SAMITHI Vs. UNION OF INDIA

JUDGEMENT

(1.) In all these writ petitions which are filed as Public Interest Litigations, the petitioners are questioning the location of Mangalore Super Thermal Power Station as well as ash pond at Nandlkur Village with the aid of USSR. The case of the petitioners is the feasibility report for the location of this project was prepared in the year 1989 itself, and that was subject to Government clearance and financing tie-up. It is stated in that report that the land proposed to be acquired is almost free from habitation, and this is totally an incorrect statement. At the instance of the villagers and the active participation of Balakrishna Shetty a team consisting of Dinesh Agarwal and Dr. Chattopadhyaya, members of the Ministry of Environment came to Padubidri on 30-11-1990 and inspected certain lands for location of ash pond at various places. Before acquiring the lands for the proposed project it is incumbent for the Pollution Control Board to obtain clearance from the Ministry of Environment. There is no such clearance, muchless the location of ash pond at Yellur. It is a case of putting the cart before the horse inasmuch as even without obtaining approval or clearance from the Ministry of Environment and Forests the respondents have proceeded with the acquisition of lands. Acquisition proceedings are taking place in a hurried way even before the project is sanctioned. It is the further case of the petitioners that according o environmental guidelines for Thermal Power Plants issued by the Ministry of Environment no forest or prime-agricultural land should be utilised for setting up of Thermal Power Scheme or for ash disposal. Out of a total of 3139.41 acres required for the project, 739.67 acres are lands yielding three crops, 95.73 acres are coconut and arecanut yielding lands with dwelling houses, 1613.37 acres are coconut, arecanut and cashewnut growing lands together with forest land with dwelling houses, and only 637.75 acres are Government lands which are mainly grazing lands and forest lands. The statement prepared by the Deputy Commissioner about the nature of the lands proposed to be acquired s based on the survey resettlement of the year 1935 and it has no relation to actualities, and the above classification regarding nature of the land is based on survey conducted by the petitioners in the presence of concerned officials. In order to keep the plant in steam 2.4 million tons of coal is required for the first stage alone. The coal has to be mined in Talchar Coalmines in Orissa and transported by rail to Paradeep Port in Orissa. It has to be shipped to Mangalore Port from where the coal has to be transported in the proposed railway line to the plant site proposed at Nandikur. For the first stage of the project, 38000 tons of coal per day is required and that would produce 14000 tons of ash. The capacity of New Mangalore Port to unload at present is about 2184 tons per day. This was achieved on 16th November, 1990 when the port was able to discharge 2184 tons of timber which arrived from Malaysia. Having regard to this, the Corporation does not have the required fleet strength and it has proposed to dispose of the ash by creating ash ponds. At the first instance t was proposed to locate the ash pond at Inna village. Thereafter it was shifted to Yellur village. The proposal is to mix the ash produced with sea water. The feasibility report will indicate that there was no application of mind as to the adverse chemical reaction of mixing the ash with sea water. The water flowing in Shambhavi river is not sufficient to meet the requirements of the project. Nowhere in the world ash is mixed with sea water. Sea water is used only for cooling purposes in some plants. Since the mixing of ash with sea water is a novel method there must have been an examination whether such a procedure was based on any experiment conducted anywhere in the world. It is also the case of the petitioners that the Karnataka State Pollution Control Board acted merely as an agent. The casual manner in which the Board has cleared the project clearly indicates that it has no knowledge of its own responsibility to the people residing in the concerned area. Inasmuch as the project is yet to be cleared, the utilisation of the machinery under the Land Acquisition Act, 1894, and the invocation of the urgency clause is bad. Another important feature is that there was no application of mind to the applicability of the Forest (Conservation) Act, 1990. No scheme was prepared for rehabilitation of large number of persons who will be dislodged from their habitat. It is the primary duty of the State Government to prepare a scheme for rehabilitating the people likely to be displaced consequent to the acquisition of the lands, and no such scheme has been prepared and the people likely to be affected are left to tend themselves. On these grounds a writ of mandamus is prayed for directing the respondents-1 to 4 to desist from carrying out any work relating to the project at Nancukur and other villages and also the work relating to the ash ponds at Kcmmundele and Yellur villages as the project itself is not a feasible project. It is further prayed to quash the proceedings of the State Government relating to Notification dated 21-10-1989 regarding land acquisition.

(2.) In the detailed statement of objections filed by respondent-4 Corporation, the averments are met in the following manner: - There is acute power shortage in the State of Karnataka. Big industries have been shying away from the State. The only solution to this problem is the establishment of big generating stations like the one envisaged by the project in question. As a matter of fact, the petitioners have nowhere stated that there is no need to generate electric power on such large scale as is contemplated by the impugned scheme; and they are unaware that the project has been conceived, examined and passed by the highest authorities viz.

(3.) Mr. Mohandas N. Hegde, learned counsel for the petitioners, reiterates the points raised by him,in writ petitions for the location of the project as well as ash pond.' According to him, location of the project must first be decided after obtaining necessary clearance from the authorities concerned including Government of India, and then alone land acquisition proceedings should have been resorted to. Even otherwise, while clearing this project no one has had regard for the environmental pollution. The authorities have not considered as to the health hazards which the location of the project might create for the human habitation and for the animal and plant kingdom. To say that there is no habitation is false. Actually number of people reside there and the location of the project will be injurious not only to human beings but also to others including plants. There is no application of mind concerning environmental hazard. Huge investment should not be incurred. The feasibility report does not cover the injurious gas likely to be produced. In W.P. No. 6262/1991 the argument is that public revenue should not be spent without permission. In case of Sharavathi project, this Court has taken the view that unless there is clearance from the point of view of the Forest Act it would be bad in law. That has not been done in this case at all.